Archive for September, 2010

Only a small number of contested divorces ever go to trial, and any rational person can see why: a divorce trial is a course of absolute last resort.

Not only is a divorce trial astronomically expensive (the legal bills for some knock-down, drag out divorce wars can go into the six digits), not only does it add months or even a year or more to the course of the action (it can and sometimes does), but also a divorce trial makes it a certainty that the former spouses will part with a deep and abiding hatred of one another.

Two former spouses who hate one another multiply the sadness and suffering of the children, who love each parent indivisibly. Former spouses who hate one another, no matter what their intentions to the contrary, find parenting even more difficult than it would be in a “normal” divorce – one where the partners are benignly indifferent to one another.

Reputable divorce and family law attorneys know that divorce trials lay waste to the land and the people who walk on it. A divorce hired gun who seems eager for battle, one who boasts of ripping the opposition to shreds, is a lawyer to avoid. He or she may make good his promise – and the client lives with a legacy of his success for years to come.

One veteran divorce lawyer says, “Criminal lawyers see bad people at their best; divorce lawyers see good people at their worst.”

Sometimes these good people, hurt and wounded by the divorce, play a particular form of hardball to put their former spouses at a disadvantage.

While it is not illegal, it is a tactic that is guaranteed to anger the other spouse and the sort of maneuvering that often leads to incremental tit-for-tat that ends in divorce warfare.

The lawyer calls it “poisoning the field of contenders.” Here is how people do it. Sam and Sally are parting ways, and Sam knows that Sally plans to use Atty. Ronald Ripper, a divorce lawyer who has a reputation as a slash-and-burn artist. Sam gets to Ripper before Sally does and pretends he is interested in hiring Ripper as his lawyer in his upcoming divorce. Sam shares confidential information with Ripper about his marriage to Sally. In so doing, Sam puts Ripper in a conflict of interest. But by giving the lawyer confidential information – the kind of information the lawyer might need in a divorce – Ripper cannot take on Sally as a client. Then, after a decent interval, Sam tells Ripper that he plans to look elsewhere for a lawyer.

Even if there is no real conflict, the appearance is enough to bar the lawyer from taking the case.

Lawyers are bound by canons of ethics. A lawyer who knows the divorcing couple from the happier days of the marriage cannot represent one of them in their divorce, and no lawyer can represent both parties in a divorce.

Discovery is the formal way of spouses headed for divorce warfare – sometimes a divorce trial – gathers information in preparation for battle.

Discovery, which is done pursuant to the rules of the court, greatly adds to the cost of a divorce, so it usually happens in contested actions.

Usually, during discovery one party subpoenas the other for documents and records. All manner of documents and records can legitimately be requested, and the opposing party who fails to respond can be found in contempt of court.

These documents include interrogatories, which are written questions answered under oath; documents of all sorts; oral depositions, which are statements to questions asked under oath by the opposing counsel; subpoena Duces Tecum, which demands the production of documents by their legal custodian; subpoena Ad Testifiicandum, which demands that the custodian testify about the document; request for admissions, which are answers to question that therefore become facts in the record; notice in lieu of subpoena, which compels a person to appear in court; notices to enter land and inspect property.

Often one side asks more information than can possibly be used in the action, and what are termed “fishing expeditions,” such as inquiries into confidential relationships, are generally not permitted.

One financial planner and divorce specialist calls the dissolution of a marriage “death without a body.” Even under the best of conditions, a divorce is normally one of life’s most traumatic experiences, ranking just below a serious illness or injury and the death of a partner. Some people who have lost a partner through death and one through divorce say that the latter is worse. In a divorce, usually one person leaves and the other is left, and this implosion of one of life’s most intimate human relationships creates a black hole of pain and suffering.

A badly managed divorce – one where the former spouses literally make war on each other fighting about everything – can do lifetime damage to the former partners. Divorce literature abounds with stories of the walking wounded of divorce – the battled-scarred who rebound in a subsequent marriage without coming to terms emotionally with the death of the earlier marriage.

Many newly divorced people, even those who wanted to end a marriage gone bad, struggle to come to terms with a phantom sense of loss that they cannot understand. Others become sexual athletes and hook up quickly in serial relationships that end in cul de sacs. Still others slip in a swamp of despair lubricated by alcohol.

A few points should be held in mind when considering divorce mental health. One, a divorce, even when it is inescapable, does not make many people happy. Two, no one, not even the spouse who gets a very generous settlement, wins in a divorce. Three, for those people who made a good faith effort at making the marriage work, a divorce means pain and suffering.

Thomas Jefferson, writing about the death of his wife Martha, called time “the Great Physician.” This is true, but for many divorced people some form of therapy. For some, it’s the company of others in a divorce support group; for others, it is professional counseling.